Invoking the Supreme Court in AK Roy Vs Union of India, the Delhi High Court has recently in the Asif Iqbal Tanha Vs State of NCT Delhi’ case underlined the significance of the observation of the apex court in the aforesaid judgment and quoted, “The life and liberty of the person cannot be put on peril of an ambiguity”. The fact remains that last month, the Delhi HC granted bail to student activists Natasha Narwal, Devanagana Kalita and Asif Iqbal Tanha in the main northeast Delhi riots conspiracy case filed under the stringent anti-terror law, the Unlawful Activities Prevention Act (UAPA). While passing orders in this case, the court took serious note of the incompetence of the state to make out prima facie cases against riots accused while justifying their arrests.
The decision of the court has, however, been appealed by the State, but what remains is to brood over for a while about the observations made by the court. The court has been critical of the State and has observed, “We find ourselves unpersuaded and unconvinced with this submission since we find it is not founded on any specific factual allegation and we are of the view that the mere use of alarming and hyperbolic verbiage in the subject charge-sheet will not convince us otherwise. In fact, upon closer scrutiny of the submissions made on behalf of the State, we find that the submissions are based upon inferences drawn by the prosecuting agency and not upon factual allegations.”
The court’s criticism of the State for just being inclined to resort to “alarming and hyperbolic verbiage” in the charge-sheet instead of factual allegations and such charge-sheet almost being premised upon the inferences drawn by the prosecuting agencies about the involvement of the accused in a conspiracy to incite or participate in the riots without elucidating any specific role, is a state of affairs mostly adhered to across the nation in such cases. Accordingly, the court in Tanha’s order said that in the charge-sheet, there were no specific allegations other than “those sought to be spun by mere grandiloquence”.
The court further observed, “We are constrained to express that it seems, that in its anxiety to suppress dissent, in the mind of the State, the line between the constitutionally guaranteed right to protest and terrorist activity seems to be getting somewhat blurred. If this mindset gains traction, it would be a sad day for democracy.”
Such modus operandi of the prosecuting agencies shows that they have perhaps not heeded to the caution of the court in the AK Roy case, that is, not to put the life and liberty of the person on peril of an ambiguity. And the result is, the charge-sheets filed in the riots cases often make uniform statements about the acts of violence to be a part of “deep-rooted conspiracy hatched under the garb” of the particular protests, as in this case the anti-CAA protests, intending to spread misinformation and create communal tensions. But fact remains that such assertions are ambiguous and will never pass the muster in the eyes of law, being situated upon the foundations of a very wide interpretation of constructive liability and which means that, it may also extend to include the bystanders and media persons covering that event, which indeed is ridiculous and laughable in the absence of an action or omission on their part making them part of any unlawful congregation, this jurisprudence has also been resonated in the Supreme Court’s decision in Muthu Naicker Vs State of Tamil Nadu. Such biased approaches and callous practices of investigating or prosecuting agencies are unwelcome even though we follow an adversarial system of justice.
This indeed is a dangerous and reprehensible trend to routinely lay emphasis on fictious or perspective-based inferences of the prosecuting agencies and not upon material fact. For example, in Tanha’s case, Faizan Khan, a salesman at a mobile store, was charged with committing a “terrorist act” under Section 15 of the UAPA, for being part of the conspiracy and acting as alter-ego of Tanha, as he issued and activated a mobile SIM card some months before the riot. However, the court found no link between his act and that of the other accused. The court further noted that prosecution was even unable to establish the fact of, “actual knowledge” of Faizan, about the plan to commit offences alleged in this case.
Therefore, the court in the context of definition of ‘terrorist Act’ in Section 15 UAPA observed, “The phrase must partake of the essential character of terrorism and the phrase ‘terrorist act’ cannot be permitted to be casually applied to criminal acts or omissions that fall squarely within the definition of conventional offences as defined inter alia under the IPC.”
There is no denying the fact that mere grant of bail to Natasha, Kalita and Tanha does not amount to an exoneration of guilt, but it is definitely indicative of the fact that the prosecuting agencies have failed to make out a prima facie case even after completion of investigation in this case owing to perspective-based filing of charge-sheet and not fact-based one.
The kind of criminal jurisprudence we follow lays importance to presumption of innocence of an accused until proved guilty and pre-trial detention of protesters may lead to (as the court observed), “apart from militating against the presumption of innocence, pre-trial detention would lead to needless psychological and physical deprivations.” The court also expressed liberal views about the nature of protests and extended leniency to the protesters and observed, “Protests against Governmental and Parliamentary actions are legitimate; and though such protests are expected to be peaceful and non-violent, it is not uncommon for protesters to push the limits permissible in law.”
The essence of the court’s order in Tanha’s case lies in the fact that the State and prosecuting agencies should refrain from perspective or inference-based presumptions and usage of ‘alarming and hyperbolic verbiage’ in drafting charge-sheets while being inclined to resort to a cult of pre-trial arrest and detention of protesters and should, instead, go for fact-based contents so that justice and rule of law prevails.
(The writer is a lawyer and public policy expert and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com)